IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-40706 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE MARCOS VELA-TORRES,

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Texas (B-01-CR-621-1)

February 19, 2003 Before BARKSDALE, DEMOSS, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Jose Marcos Vela-Torres appeals from his guilty-plea

conviction of possession of, with intent to distribute,

approximately 91 kilograms of marijuana, in violation of

.

Vela-Torres contends the district court committed reversible

plain error by assigning one criminal history point for a sentence

imposed more than ten years before commencement of the instant

offense. See U.S.S.G. § 4A1.1, cmt. n. 3. This error, however,

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. did not affect Vela-Torres’ guidelines range. Because the district

court could “lawfully and reasonably” impose the same sentence on

remand, Vela-Torres has not shown that this mistake constitutes

plain error. See United States v. Ravitch,

(5th

Cir. 1997).

Vela-Torres maintains that

is unconstitutional

in the light of Apprendi v. New Jersey,

(2000). As

Vela-Torres concedes, his contention is foreclosed by circuit

precedent, see United States v. Slaughter,

, 582 (5th

Cir. 2000), cert. denied,

(2001); instead, he raises

the issue to preserve it for Supreme Court review.

Vela-Tores’ final contention, that the judgment inaccurately

reflects he must pay a $100 special assessment, lacks merit. The

judgment reflects that the assessment was remitted.

AFFIRMED

2